McFarland v. City of Tampa et al

Filing 82

ORDER denying 67 --plaintiff's motion for summary judgment; granting in part and denying in part 71 --defendants' motion for summary judgment; denying 81 --motion for clarification. Signed by Judge Steven D. Merryday on 3/17/2017. (SKB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JAMES S. MCFARLAND,
Plaintiff,
v.

CASE NO. 8:13-cv-3076-T-23MAP

CITY OF TAMPA, et al.,
Defendants.
/

ORDER
Suing under 42 U.S.C. § 1983, James McFarland alleges that Tampa police
officers James Verble and Michael Fisher arrested him without probable cause,
illegally entered and searched his apartment, and confined him in a hot patrol car.1
McFarland moves (Doc. 67) for summary judgment. The defendants respond by a
cross-motion for summary judgment (Doc. 71). McFarland responds (Doc. 73-1)
and moves “to clarify” (Doc. 81).
BACKGROUND
At 10:39 p.m. on August 6, 2012, Tampa police received a call reporting
gunshots at McFarland’s apartment. Tampa police officers, including Verble and
Fisher, responded. Predictably, the parties’ accounts differ materially.

1

Verble and Fisher are the only remaining defendants. An April 23, 2014 order (Doc. 18)
dismisses the Tampa Police Department and the City of Tampa. A February 22, 2016 order
(Doc. 57) dismisses Chief Jane Castor and officer Antonio Ortiz-Saldana.

The defendants’ account
When Verble arrived, McFarland’s apartment door “was standing wide open,”
and McFarland stood inside the door. McFarland wore dreadlocks and a black tank
top, consistent with the description of the shooter. (Doc. 71-5 at 28–29)
Verble asked McFarland to show his hands and exit the apartment. Verble
checked McFarland for weapons in the front yard. Verble “approached the front
door of the residence and observed a small silver revolver on top of a large speaker
just inside the front door.” According to Verble, the gun “was in plain view from
outside the house.” Verble asked McFarland “if he had ever been to prison” and
McFarland answered “yes.” A records check confirmed that McFarland was a
convicted felon. (Doc. 71-5 at 29)
Verble arrested McFarland at 10:45 p.m., six minutes after the shots-fired call.
The defendants assert that Verble possessed arguable probable cause to arrest
McFarland for a violation of Section 790.23(1), Florida Statutes, which forbids a
convicted felon’s possessing a firearm. (Doc 71-4 at 1, Doc. 71-5 at 27)
Verble “conducted a check of the residence for any possible shooting victims
that might be inside.” Verble located no victims, but he smelled cannabis and
observed drug paraphernalia. Verble and other officers secured the apartment.
(Doc. 71-5 at 27, 29)
After “developing probable cause” and advising McFarland of his Miranda
rights, Fisher attempted to obtain McFarland’s consent to search the apartment.
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McFarland refused and told Fisher to get a warrant. When Fisher returned with a
warrant, Fisher, Verble, and other officers searched the apartment. The search
revealed cocaine, cannabis, oxycodone, baggies, scales, and a cannabis pipe.
(Doc. 71-5 at 34–36)
McFarland was charged with possession of a firearm by a convicted felon,
possession of ammunition by a convicted felon, possession of cocaine with intent to
distribute, possession of cannabis with intent to distribute, possession of less than
twenty grams of cannabis, possession of a controlled substance (oxycodone), and
possession of drug paraphernalia. At approximately 8:00 a.m. on August 7, 2012,
McFarland was booked into the Hillsborough County jail. (Doc. 53 at ¶¶ 8–9,
Doc. 71-4 at 1, Doc. 71-5 at 5, 7)
McFarland’s account
McFarland maintains that he was washing a truck in his front yard when
Verble and Fisher approached and asked about gunshots fired in the neighborhood.
McFarland answered their questions and allowed Verble to test his hands for
gunshot residue, which came back negative. Without explanation, Verble arrested
McFarland. (Doc. 53 at ¶¶ 2–4)
At the time of the arrest, the front door to McFarland’s apartment was closed.
McFarland refused to allow the officers to enter his apartment. Nonetheless, Verble
entered the apartment. (Doc. 73-1 at 2, Doc. 67 at 2, Doc. 53 at ¶ 5)

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While officers searched his apartment, McFarland remained handcuffed in the
back seat of a patrol car with the windows closed and without air-conditioning.
According to McFarland, when he told them to leave his apartment, the officers
called McFarland “nigger, coon, [and] black monkey with dre[a]ds.”2 (Doc. 53
at ¶¶ 4–6)
After three or four hours in the patrol car, McFarland began screaming for
help. Two unidentified officers moved the handcuffs to the front of McFarland’s
body and released him from the car to stretch. At some point, the officers moved
McFarland to his living room couch. (Doc. 53 at ¶ 7, Doc. 67 at 2, Doc. 71-5 at 38)
Ultimately, Verble and Fisher re-entered the apartment, removed items, and
arrested McFarland based on those items. McFarland maintains that a gun located
during the search is a replica revolver. (Doc. 53 at ¶ 9, Doc. 73-1 at 1)
DISCUSSION
Under Section 1983, a plaintiff can sue a person who acts under color of state
law and who violates the plaintiff’s constitutional rights. Garczynski v. Bradshaw,
573 F.3d 1158, 1165 (11th Cir. 2009). Genuine issues of material fact preclude
summary judgment for the plaintiff.
But, because the “threat of litigation may stymie a police officer’s ability to
perform his duties effectively,” qualified immunity protects completely a police

2

The February 22, 2016 order dismisses the complaint to the extent that McFarland alleges
the verbal abuse constitutes a “hate crime” or a distinct constitutional violation. (Doc. 57 at 9–10)

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officer from Section 1983 liability if the officer acts within his discretionary authority
and if the officer violates no clearly established constitutional right. Garczynski,
573 F.3d at 1166 (internal quotation marks omitted).
Invoking qualified immunity, the defendants move for summary judgment.
To establish a qualified-immunity defense, the defendants must first show that they
acted within their discretionary authority. Mobley v. Palm Beach Cnty. Sheriff Dept.,
783 F.3d 1347, 1352 (11th Cir. 2015). No dispute exists on that issue, and the
burden shifts to McFarland to demonstrate that the defendants violated a clearly
established constitutional right. Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir.
2012). An arrest without probable cause violates the Fourth Amendment. But an
officer is entitled to qualified immunity if the officer possesses at least “arguable”
probable cause for the arrest. Wilkerson v. Seymour, 736 F.3d 974, 977–78 (11th Cir.
2013). Arguable probable cause exists when a reasonable officer “in the same
circumstances and possessing the same knowledge . . . could have believed that
probable caused existed.” Wilkerson, 736 F.3d at 978 (internal quotation marks
omitted).
For the most part, genuine issues of material fact preclude summary judgment
for the defendants. McFarland claims he was arrested immediately upon the officers’
arrival at the scene and wholly without probable cause. If so, qualified immunity is
unavailable to the arresting officers in an action based on that arrest.

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However, the defendants convincingly insist that arguable probable cause
existed to arrest McFarland on the morning of August 7, 2012, “because illegal
drugs, paraphernalia, a gun, and ammunition were inside [McFarland’s] apartment
and truck and each item constituted a violation of Florida law.” (Doc. 71 at 10)
McFarland offers no substantial argument on this issue. At best, McFarland’s
complaint implies that items seized during an illegal search cannot provide the basis
for a valid arrest. (Doc. 53 at ¶ 8) However, “the exclusionary rule does not apply in
a civil suit against police officers.” Black v. Wigington, 811 F.3d 1259, 1268 (11th Cir.
2016). Ample probable cause supported McFarland’s arrest on the morning of
August 7, 2012, and against a Section 1983 claim based on that arrest the defendants
are protected by qualified immunity.
Motion to clarify
McFarland files a “motion to clarify,” which argues that the defendants’
failure to file a separate response to his motion for summary judgment warrants
judgment in his favor. McFarland is mistaken. Even when a motion for summary
judgment in unopposed, a court must determine whether the moving party is entitled
to judgment as a matter of law. United States v. One Piece of Real Prop. Located at 5800
SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101–02 (11th Cir. 2004).
CONCLUSION
McFarland’s motion for summary judgment (Doc. 67) is DENIED. The
defendants’ motion for summary judgment (Doc. 71) is GRANTED on the claim
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based on the arrest on the morning of August 7, 2012. The defendants’ motion for
summary judgment otherwise is DENIED.3 Also, McFarland’s “motion to clarify”
(Doc. 81) is DENIED.
ORDERED in Tampa, Florida, on March 17, 2017.

3

The defendants have not expressly argued that the officers’ pre-warrant entry into the
premises was a lawful “protective sweep.” Walter R. Lafave, Search and Seizure, vol. 3, § 6.4 (c)
(Thomson Reuters West 2012); United States v. Caraza, 843 F.2d 432 (11th Cir. 1988); United States v.
Maldonado, 472 F.3d 388 (5th Cir. 2006).

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